Caught in the Seamless Web: Does the Internetís Global Reach Justify Less Freedom of Speech?

by Robert Corn-Revere

Robert Corn-Revere, an adjunct scholar with the Cato Institute, is a partner at Hogan & Hartson in Washington, D.C., where he practices First Amendment law. He wrote, along with Ann Brick of ACLU of Northern California, an amicus brief in Yahoo!, Inc. v. LaLigue contre le Racisme et l'Antisemitisme, Case No. 01-17424 (9th Cir.). This paper is based, in part, on that brief.

Executive Summary

A federal appellate court will decide this year
whether French anti-discrimination law can
restrict freedom of speech on U.S.-based websites
that are accessible in France. A Paris court
ruled in 2000 that the Yahoo! website violated
French law because its users offered for sale certain
Nazi artifacts. However, to force compliance
with the order, French plaintiffs must seek
enforcement from a U.S. court. In response,
Yahoo! sought a declaratory ruling and a federal
district court held that enforcing the French
order would violate the First Amendment. The
matter is now on appeal.

The Yahoo! case presents the question of
whether the Internet should be governed by
myriad local censorship laws from around the
world. U.S. courts have held uniformly that the
Internet should receive the highest degree of
First Amendment protection. They have been
influenced profoundly by the medium's global
reach and have invalidated most restrictions so
as not to interrupt the "never-ending worldwide
conversation" that the Internet makes possible.
A contrary result in the Yahoo! case would
embrace a very different philosophy—that
Internet speakers must "show their papers" at
each nation's borders to ensure that their speech
is acceptable to local authorities.

Other nations may treat their citizens as fragile
children if they wish, or worse, as enemies of
the state. But U.S. courts should not permit the
seeds of foreign censorship to be planted on U.S.
soil by finding that such restrictions are enforceable
here.